Formal Constraints in Legal
Argumentation in Russia: the Case
of the Russian Penal Procedure
Ekaterina Samokina, National
Research University HSE
• Formalism in Russian legal system;
• Confused legal notions;
• Legal texts as constraints for legal
argumentation;
• Formality of penal procedure in Russia.
Formalism in Russian legal system
• monopoly of the legislator to set out legal
norms;
• precise and univocal rules and concepts;
• deductive decision-making procedure.
Judicial syllogism
• legal rule (the major term);
• concrete case (the minor term);
• decision (the conclusion)
Example
• Commitment of theft is punished by
imprisonment (Art. 158 )
• A. committed a theft
_______________________________________
A. ought to be punished by the imprisonment
Administration of justice
Formal justice
Material justice
correspondence between
the decision and the
principle of formal justice
the rule of justice
judge
legislator
Judicial syllogism
Pro
simplicity in regulation
certainty in decision
making
absence of legal gaps
absence of arbitrary
decisions
Contra
inflexibility
formalism
loose interpretation
works only within
formal systems
(ideological
construction).
Confused legal notions
Confused notions appear
• in the beginning of discussion when the
interlocutors are governed by prejudices;
• after discussing the matter when there are
still controversies related to a certain
irreducible vagueness of the terms we use
(the case of legal and moral notions).
There are two reasons that explain
the presence of confused notions
in jurisprudence
• jurisprudence deals with human behavior, its
motives, values and beliefs of the society that
could not be expressed in univocal and clear
terms;
• language that is used in jurisprudence is
natural one in opposition to an artificial
(formalized) language.
Legal texts as constraints for legal
argumentation
The specific of positive law as a special field of
argument:
• It is governed by the well-defined texts;
• has to be developed within a definite system.
Can penal procedure be formal?
Main legislative acts regulating penal law:
• Penal Code defines crime, guilt, motive and
target of a crime, punishment, recidivation
etc. and describes different types of legally
defined crimes and punishment;
• Code of Penal Procedure which regulates the
process of accusation, prosecution, court
procedure etc.
Codes
Both the Codes contain formal constraints for
the legal argumentation.
• in Penal Code: essential elements of the
crime, the event of the crime, measure of
punishment etc;
• in the Code of Penal Procedure: judicial
process.